The Traditional and Khoi-San Leadership Bill: Apartheid, Ver 2.0?

Marelise van der Merwe

Marelise van der Merwe

Marelise van der Merwe writes about anything and everything. After she studied, and then studied some more, and then studied a bit more, she spent some years writing, editing, researching and teaching, before becoming production editor at the Daily Maverick. After a couple more years keeping vampire hours in order to bring you each shiny new edition (you’re welcome) she ventured into the daylight to write features. She still blinks in the sunlight.

The Traditional and Khoi-San Leadership Bill continues to attract controversy. But amid concerns that it reinforces apartheid boundaries and facilitates exploitation, South Africa’s poorest can be robbed blind with zero consequences. By MARELISE VAN DER MERWE.

It’s almost like that moment in Harry Potter where the young wizard finds out, at the eleventh hour, that his hearing has been shifted to a time and venue he can’t possibly attend. In line with regulations, the Parliamentary Portfolio Committee did indeed set up a schedule of meetings to discuss the Khoi-San and Traditional Leadership Bill (TKLB) with the public. But first it was postponed to after the Local Government Elections. Then, says Brendan Boyle, activist for the Land and Accountability Research Centre at UCT, the schedule was changed at the last minute, with the information difficult to access. “How can you call this consultation?” he asks.

Additionally, fellow members of the LARC said in September, the venue line-up did not favour traditional communities participating in the consultation process.

Consultation, in this instance, is important.

First and foremost: compare the post-apartheid boundaries around the land where chiefs are intended to have jurisdiction, and they’re uncomfortably close to the old homeland borders.

Second: the affected parties are treated differently. For example, Khoisan people must declare their affiliations, while other traditional communities are determined geographically. For the former, this has raised concerns that the process is laborious and potentially unjust in an already fraught land restitution process; for the latter it has raised concerns that the rule infringes on the constitutional right to freedom of association. Add this to the fact that said geographical borders reinforce apartheid boundaries, and a more worrisome picture emerges.

Third: Scratch the surface, and you find the door wide open to unchecked and unlawful pillaging of the country’s most valuable resources, at the expense of those who need it most.

The loot vs. the boot

In July this year, outgoing Public Protector Thuli Madonsela ordered the government of North-West Province to account for some R600-million owed to the Bapo Ba Mogale Community in Bapong. The community – like so many others in South Africa – should be rich on paper, but in practice lives in poverty.

According to the preliminary findings of Madonsela’s investigation into allegations of maladministration of the tribe’s royalties since 1994, the community had missed out on hundreds of millions. Although by law these royalties should have been accounted for, they never had been.

The community, in theory, had mining rights linked to a so-called D-account, one of 96 in the province, but which was pillaged.

In an uncannily Nkandla-like echo, Madonsela found the largest amount – R80-million – was spent on building tribal chief Emius Mogale a luxurious palace.

“Royalties can be declared creatively,” Boyle says wryly. “Community procurement in mining can also easily be corrupted.”

Fast-forward a few months and the TKLB is up for discussion, which raises questions about whether it protects communities like the Bapo Ba Mogale from exploitation. In a word: no.

The basics

Bear with us while we back up a bit. The bill is, say activists, essentially two laws in one; to recognise Khoisan communities and provide for structures and leadership, and a revision of the existing Traditional Leadership and Governance Framework Act (TLGFA). The consultation process thus far, they argue, dealt inadequately with both.

“Traditional communities” refer in the bill only to groups ruled by a chief, but some communities do not want to recognise a chief. Furthermore, traditional communities are understood to be “living customary law”, but there is not one set of customary laws. Particularly, land ownership has the potential for complications, where in many cases it is determined through a layered, interactive process which – under inadequate laws – is open to exploitation.

The bill has already been criticised extensively from various quarters of the Khoisan community – although “Khoisan” in itself is a sometimes contested term, having been coined in 1928 and encompassing a multitude of identities and histories. To date, implications for traditional communities in former homelands have come under a little less fire from media.

“Though the bill has huge implications for traditional communities in former homelands, the National Assembly has chosen to hold hearings in areas relevant to Khoi-San issues, rather than communities living under customary rule on communal land,” Boyle said earlier in September.

The bill is, on paper, meant to give recognition to Khoisan communities, leaders and councils, which have to date not been given such recognition. It’s also meant to protect traditional communities, but in its current form, researchers are concerned it will do the exact opposite.

Correcting historical injustices?

In February, a statement issued by Parliament conceded that the bill had received “mixed reviews” at a series of public hearings at the time. Officials seemed optimistic that things were moving in the right direction, however.

“There is going to be a hot discussion and contradicting views about who came first, who migrated where, but these many streams must feed somewhere and build a new society. No one is saying [that we should do] away with traditional leadership. All of us are trying to find a mechanism to make them function better in our society,” said committee chairman Richard Mdakane.

“The intention is to correct historical injustices, which resulted in leaving of one of the indigenous groups out of the recognition system,” added Philemon Mapulane, a member of the committee. “We want to try to democratise traditional leadership and ensure that the recognition concept is subjected to the principles of the Constitution.”

The human rights of some 22-million rural South Africans stand to be affected by the bill in major, tangible ways, yet it has some distance to go before the above goals are achieved. In 2003, Parliament passed the TGLFA, which recognised “tribes” created in terms of the Native Administration Act of 1927 as current “traditional communities”. It similarly recognised”‘tribal authorities” created in terms of the Bantu Authorities Act of 1951, argues the LARC. The tribal authority boundaries added up to the apartheid Bantustans, which have been used to define the areas to which the bill will apply. Effectively, critics say, this means that apart from the parts of the bill applying specifically to Khoisan recognition, it recreates the former apartheid homelands.

Additionally, the fact that these boundaries will be determined geographically means that residents will have no choice but to be subject to tribal authority, whether they wish to or not; it also means that should they wish to identify with a particular community but not live there, they cannot. Moreover, the leader’s legitimacy will not be determined by the people but solely by territory and, to add insult to injury, it also opens residents up to land rights abuses.

“If you live in a former homeland, you have a tribal identity imposed upon you, you are subject to traditional leadership and you hold such land as you have under tenuous provisions inappropriately dominated by traditional leaders who, in most places, claim – wrongly – to be owners of the land on behalf of their people,” LARC explained in a statement.

What’s yours is mined, what’s mine is mined

Here’s where it gets really troubling. Clause 24 of the bill underwent an amendment in the last draft, which could have catastrophic consequences not unlike those suffered by the Bapo Ba Mogale.

It reads:

24. (1) The national government and provincial governments may, through legislative or other measures, regulate partnerships and agreements as contemplated in this section.

(2) Kingship or queenship councils, principal traditional councils, traditional councils, Khoi-San councils and traditional sub-councils may enter into partnerships and agreements with each other, and with –

(a) municipalities;

(b) government departments; and

(c) any other person, body or institution.

That final phrase – “any other person, body or institution” – was the late addition, and in combination with no reference to community consultation, it means traditional councils (Khoisan and in former homelands) may enter into agreements and contracts with, well, anybody. In practice, says Boyle, this clears the way for authorities to strike deals that could have massive communal ramifications for communities without consulting them: opening the door to mining, corporate deals, road-building, etc.

The clause does specify that any partnership must be beneficial to the community and approved by the premier, but without consultation, “benefit” remains – at best – debatable, and municipalities will be able to devolve power to chiefs as well, says Boyle.

Accountability is provided for in theory – Traditional Councils are supposed to keep records and submit accounts to the Auditor-General, for instance – but no recourse or processes are outlined for if they do not do this.

Tenders, adds Boyle, can be registered in (elite) group names, which are subject to all the same temptations of corruption as any other large-scale operations. Money can be funnelled between affiliated organisations, tax can be evaded, audits can be avoided.

“The community ‘benefits’ in theory,” says Boyle. “The law does require audits, but these often do not take place. Mining licenses are not granted in a manner which benefits communities.”

Mining is, of course, a particularly contentious issue for many communities. Near Melmoth in KwaZulu-Natal, for instance, community members heard late in August that after a four-year fight, Indian company Jindal Africa had opted to shelve an application to mine their land.

“Mining is never development. If it is, then it is tsunami development because it comes with a lot of destruction. In fact, mining is a massive eviction project, not development,” Reverend Mbhekiseni Mavuso, who led the campaign to preserve existing lifestyles among the hills of Makhasaneni, told LARC at the time.

More prominently, Xolobeni is at the centre of a heated legal dispute between Australian mining company Mineral Resources Commodities and lobbyists who say they are prepared to take the matter to Constitutional Court. Just days ago, the Legal Resources Centre issued a press release confirming that the community was seeking a declarator from the High Court stating that the Minister of Mineral Resources may not grant a mining right in Xolobeni without the consent of the Umgungundlovu community. If the application is unsuccessful, it does not bode well for other communities seeking more autonomy over the resources in their environment. If the application is successful, however, it could be a landmark ruling for similarly affected communities.

“If granted, the application will establish that mining rights may not be granted on communal land anywhere in South Africa without community consent,” the LRC said.

In the meantime, however, traditional leadership in terms of the TKLB holds serious potential implications for communities in mining areas. If leaders or traditional councils are able to represent community members without consultation, there is room for corruption of the ongoing enrichment of a small group of elites, believes Boyle. “We’ve yet to find a community that’s better off after mining.

“The TKLB was supposed to protect traditional communities,” he adds. “We would have liked to see the TKLB consolidate the rights of land ownership, for example. Instead, there are serious issues of accountability.” DM

Marelise van der Merwe writes about anything and everything. After she studied, and then studied some more, and then studied a bit more, she spent some years writing, editing, researching and teaching, before becoming production editor at the Daily Maverick. After a couple more years keeping vampire hours in order to bring you each shiny new edition (you’re welcome) she ventured into the daylight to write features. She still blinks in the sunlight.